1. Tanja Majer-Bokšić, Ms
tanja.majer.boksic@gmail.com
Legal Adviser at Ombudsman for Consumer Protection
Project Thesis
ADR (alternative dispute resolution) in Service of Human Rights
Protection
Consumer protection has its significance in Europe, since it protects the rights of generators
of retail turnover which significantly contributes to the welfare of the whole society. Since
there is no man who isn’t at the same time a consumer, consumer rights can be seen as
human rights. Also, a large number of consumer rights that greatly correspond with human
rights (right to environmental health, right to privacy, right to redress and remedy etc.) are
daily breached. Consumers are an inevitable part of the functioning market and they need
sufficient and adequate protection. The Council of the EU has dealt with it by means of the
consumer protection legislation.
Consumer protection is therefore an inseparable part of every European state’s policy. Often,
though, it remains at the declaratory level – justifying the obligation to adopt the legislation
into national legislation, but with a very low grade of the enforcement in practice. Consumer
awareness is at the lowest level and particular initiatives focused on the consumer rights
protection often suffer an inadequate support for their activities. Consumer organisations in
EU candidate countries (namely B&H) fight endlessly against the lack of financial resources,
which shifts the consumer protection to the voluntary, many times even amateurish level.
Under such circumstances, there is no way to talk about neither effective, nor efficient help
for consumers.
The significant challenge of these days is the growth of e-commerce. The growth itself occurs
much faster than the response in legislation and regulations resulting in “fire extinguishing”
already existing problems instead of preventing them. The common EU market, as well as
global market is easily accessible on one hand - even more easily through the internet, but on
the other hand very vulnerable. Cross-border online shopping is still in very low digits,
mainly because of doubts of consumers and their lack of knowledge of national e-commerce
legislation and possible threats.
Mediation and other ADR schemes are an alternative method of resolving disputes, outside of
the traditional, adversarial, litigation-centred model. Mediation has been defined as a
"process in which an impartial intervener assists two or more negotiating parties to identify
matters of concern and then develop mutually acceptable proposals to deal with the
concerns." The neutral or mediator does not have binding authority to decide any issues.
She/he can only help the parties resolve the matter if they are willing. Mediation can be part
of an official court system (called "court-annexed mediation") or it can be a stand alone
procedure, completely independent of the courts. In either case, it is usually a voluntary
procedure for all parties.
Objectives
Objectives of this project proposal fully correspond with the objectives of the call for
proposals because they directly strengthen the work of non-governmental organisations and
extend their effect in compliance with the latest consumer challenges and requirements in
reaction to the development trends of trade and market. It’s fully compliant with Objective 2
- Strengthening the role of civil society in promoting human rights and
democratic reform, in supporting conflict prevention and in consolidating
political participation and representation as it will present and demonstrate new and
innovative ways of conflict and disputes resolution. Project and its implementation will have
a positive impact on the increase in consumer´s satisfaction and quality of life in

2. Tanja Majer-Bokšić, Ms
tanja.majer.boksic@gmail.com
Legal Adviser at Ombudsman for Consumer Protection
B&H because it helps to resolve the consumer rights enforcement in practice. It also
contributes in efforts of building towards consensus on disputed or controversial
areas of policy in deeply divided societies, by means of civil society dialogues which
seek to bridge societal divides and which bring together a wide range of stakeholders to share
experience and analyse common problems.
This proposal also counts on the professional organisations of the civil society as it
will create new jobs in existing organisations which work on the voluntary basis.
Further on, we plan to create an intensive national cooperation among participating
organisations from both states’ entities and support the mutual communication. Courts,
mediators, consumer organizations and consumers will be connected through the workshops,
roundtables, dispute resolution simulations... Thus, we plane to address mainly Theme 2 -
peaceful management, mediation or resolution of conflicts and transitional
justice and reconciliation through which we plan to introduce the European legislation to
all relevant stakeholders.
Relevance
Each EU member state has been obliged to strengthen and improve the consumer rights
protection in its legislation by means of transposing Council´s directives into national
legislative modifications. This obligation was met by all EU member states but the
transposition through many fragmental legal acts prolonged efforts which caused it to be
highly non-transparent and with a questionable impact on the practical level of the consumer
law enforcement in practice. There is a huge cases backlog on bh courts which are stuffed
with utilities disputes from war and post-war period. In these disputes Utilities Providers are
the plaintiffs whilst the consumers-defaulters are on the other side. But in case of dubious
contract obligation, regular consumer (for which consumer protection is designed and meant
for) has no protection. He has to wait years to get his day in court; it costs money and is very
unlikely that he will be compensated or that his situation will be restored. He is deprived
from his basic human right –right to access to justice. Justice delayed is justice denied!
The consequences of a dysfunctional court system cannot be overstated. Individuals and
businesses cannot effectively enforce their contractual rights and as a result, economic
activity suffers. In addition, a dysfunctional court system can also prevent individuals from
enforcing human rights they have been granted in their legislation. The B&H Constitution is
unique in that it explicitly incorporates the rights and freedoms set forth in the European
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention) and declares that these rights "have priority over all other law." In theory, this
means that the highly developed case law of the European Court of Human Rights (ECHR) is
the supreme law of the land. However, the enforcement of these rights in B&H is
questionable. For instance, Article 6 of the European Convention guarantees the right of all
persons to a "fair and public hearing within a reasonable time..." It is likely that the slow
administration of justice in B&H is violating citizens' human rights under this provision.
Mediation and other ADR schemes may be useful in addressing some of these problems.
Mediation and ADR in general in B&H context could help free up scarce judicial resources by
reducing the number of hearings, trials, and eventually the number of cases. The HJPC of
B&H (Visoko sudsko i tužiteljsko vijeće BiH) cited the lack of mediation options as one
reason for the significant case backlog. Another issue that might be mitigated by mediation in
B&H is excessive dispute resolution costs. In B&H, lawsuits are expensive relative to local
wages. Mediation has shown to be less costly than litigation. And, mediation may help

3. Tanja Majer-Bokšić, Ms
tanja.majer.boksic@gmail.com
Legal Adviser at Ombudsman for Consumer Protection
reduce high legal fees by reducing the number of court appearances and eliminating the need
for costly trials.
Mediation would also provide BiH parties the opportunity to develop more creative and
appropriate solutions to consumer disputes, instead of relying on general statutes, limited or
non-existent case law, and potentially inconsistent decision-makers. Mediation may even
address some of the more general problems in BiH. Studies show that mediation can improve
access to justice in a variety of ways. Mediation can help poorer segments of society
participate in conflict resolution where they might not have been able to afford an attorney
for traditional litigation. Mediation can take place in rural areas or areas not served by a
courthouse. It can occur on weekends or evenings so that participants do not have to take
time off of work. A proposed EU Directive promoting mediation in civil and commercial
matters identifies its primary objective as ensuring better access to justice. Mediation's
generally informal nature may also appear less intimidating to people who view the
government with suspicion or fear. Mediation might actually help strengthen democracy. In
several cases, mediation has played a role in preparing community leaders, increasing civic
engagement, and developing public processes that facilitate restructuring and social change.
Justice Sector Reform Strategy 2008-2012, Case backlog reduction project of High Judicial
and Prosecutorial Council 2008 financed by Council of Europe, IFC’s Alternative Dispute
Resolution Program (2005-2008), Alternative Dispute Resolution Platform in Bosnia and
Herzegovina,2004 (Canadian Institute for Conflict Resolution) are just some of the initiatives
with same goals as ours. Whether is looked upon from professionals or consumers point of
view ultimate goal is common-exercising and protection of consumer (human) rights in a
prompt, inexpensive, fair and transparent manner.
Designated targets groups would be:
1. Public officials in relevant public entities (with competence to
appoint ADR bodies/councils); they are the legal holders of
consumer protection and consumer dispute resolution it’s in their
domain of responsibilities.
2. Judges of municipalities courts; they play important role
in case backlog reduction and overall consumer/citizen access to
justice; sitting trial court judges will need to be trained on how to
identify appropriate cases for mediation and encouraged to make
the suggestion to parties. They will be, in essence, the gatekeepers.
In the short term, parties are not likely to suggest mediation to
each other for two reasons. First, their lawyers may be unfamiliar
with mediation and second, a suggestion of mediation might be
taken as a sign of weakness. Therefore, it will be incumbent on the
judges to take proactive steps to refer cases to mediation.
3. Mediators; actors of already existing mediation ADR scheme
with all necessary legal framework in place and ready for use; Law
on Mediation harmonized with EU recommendations and
UNCITRAL model law/ allows for legal and non-legal professionals
to become mediators/ Mediation agreement – executive title; In
addition, it may be useful to recruit mediators from the ranks of
certain industries like mining, insurance, or organized labour and
then provide them with specialized training.

4. Tanja Majer-Bokšić, Ms
tanja.majer.boksic@gmail.com
Legal Adviser at Ombudsman for Consumer Protection
4. Consumer organization staff, their education on these
issues and professionalization will enable multiplication of Projects
efforts.
Final beneficiaries would be:
1. Consumers- 1) Consumers are deprived from their right guaranteed
in Art 6 of European Convention "fair and public hearing within a
reasonable time..." 2) Through the era of socialism, B&H citizens were not
accustomed to take personal responsibility for decisions. Furthermore, they
didn’t practise the art of compromise. Citizens had the choice of acquiescence
in governmental action or protest. The use of mediation might help build a
much needed culture of compromise. Both parties and representatives might
begin to explore non-confrontational ways to address conflicts and begin to
take personal responsibility for resolving them. This is especially crucial for
B&H given the fact that ethnic tensions remain and compromise on these
issues is of paramount importance to the survival of the state. While it is
impossible to predict with precision the kind of impact mediation might have
on B&H's fractured society, the foregoing suggests that, given sufficient time
and resources, a well-conceived program might promote consensual
approaches to problem solving and public policy debate, thereby
strengthening this post-conflict, nascent democracy.
2. Business community: One study commissioned by the European
Bank for Reconstruction and Development (EBRD) found that legal
institutions' effectiveness in enforcing laws is more important for foreign
investment in transition economies than is the establishment of modern, pro-
business laws on the books. In B&H, the perception and reality of weak
enforcement of property and other rights has hurt economic development. The
World Bank survey ranked the B&H judiciary second in the Europe and
Eurasia region for being an impediment to doing business.
3. Legal community; ADR may improve citizens' attitudes towards the
B&H judicial system in general. As mentioned, studies show that the B&H
judicial system is currently held in very low regard by the population.
Mediation's emphasis on party-centred decision-making provides better
opportunities for parties to resolve cases in a manner consistent with their
interests. Since resolutions are voluntary, mediation eliminates the inherent
coercion that a court judgment entails. Studies show that mediation tends to
have a very high user satisfaction rate. As a result, mediation parties will view
the general judicial system more positively, which should improve the rule of
law.